Hospital that disciplined nurse for absences, then fired her must defend FMLA claims

Denying a hospital’s motion for summary judgment on a nurse’s FMLA claims, a federal district court in New York found triable issues based largely on evidence that the hospital had a policy of disciplining employees who took leave without notice, but failed to identify instances in which the nurse’s leave was protected under the FMLA, and disciplined her on some occasions when it should not have. And though the employer claimed she was terminated because she failed to attend a conference yet received pay for attendance, the employee could show the reason was a pretext because her supervisor was aware that she did not attend the conference and the hospital failed to follow its usual procedure of seeking reimbursement from the employee (Smith v. North Shore-Long Island Jewish Health System, February 26, 2018, Brodie, M.).

Tracking absences regardless of FMLA. Throughout the employee’s tenure at the hospital, she suffered from anxiety disorders and panic attacks. The hospital accommodated her with a lighter work schedule than other nurses and she took a number of leaves of absence under the FMLA. The hospital generated a spreadsheet of nurses who called in sick more than three times per quarter, regardless of whether the absence was due to approved leave under the FMLA.

Warnings, discipline, and termination. The employee was issued multiple warnings for her leave, even though some was FMLA- protected. She was also allegedly denied transfers and the ability to go to conferences because of her leaves of absence. At one point, she was allowed to go to a conference, but ended up not attending because she could not find anyone to cover her shift. She was paid for the conference attendance; the employee assumed the payment was for accrued paid time off. The hospital later discovered that she had not attended the conference and fired her for accepting pay for a conference she failed to attend.

FMLA retaliation claims. The employee claimed that the denial of her transfer requests and her termination were in retaliation for having taken FMLA leave. The employer argued that the transfer denials were not adverse employment actions and there was no causal connection between her exercise of FMLA rights and the denials of transfer and termination. However, the court found that the transfer denials were adverse actions. Although the transfers did not come with immediate tangible benefits, the assignments were more prestigious and could have conferred tangible benefits in the future.

Causation. The court also found that the employee produced direct evidence of a causal connection in the form of statements made by the employee’s supervisor, who told her the transfers were denied because the employee took excessive leave. The supervisor had also threatened the employee, saying that he would get even with her for leaving him short-staffed. She also produced circumstantial evidence of a causal connection because the spreadsheet generated under the hospital’s sick policy did not distinguish between protected and unprotected leave, and she was disciplined for taking protected leave.

Pretext evidence. Although the employer’ reason for firing her was nondiscriminatory, the employee had sufficient evidence of pretext on the termination on one transfer denial. Because her supervisor knew she worked the shift she had asked to drop to attend the conference, he was aware she failed to attend the conference. And the employer’s usual policy if a nurse was paid for a conference and did not attend was to reverse the charges or use the employee’s accrued time off. The supervisor offered no explanation as to why this was not done, and no explanation as to why he waited five months to report the employee to HR for failure to attend the conference. Therefore, a reasonable jury could find that the hospital’s termination of the employee was a “disingenuous overreaction” to justify dismissal of an employee who asserted her FMLA rights.

Inconsistencies. As to one of the denials of transfer, the court found the employee had raised a triable issue that the reason was pretext. The employer claimed that the transfer was denied because the employee failed to provide some employee information on the request. But on other transfer requests, the employee had left similar information blank and the lack of information was not cited as a reason for a denial of the other transfer requests. This inconsistency was evidence that the employer’s cited reason was pretext. The employee did fail to show pretext for four of the five denials of transfer, because she did not include required information, such as position number, in the applications. Summary judgment was granted for the employer on those claims.

ADA and state disability discrimination claim. The employer argued that the employee was not qualified under the ADA, because she could not work when symptomatic. But she had worked at the hospital for years, using intermittent leave, and the hospital provided no evidence that this intermittent leave was not a reasonable accommodation. Because the FMLA leave was taken because of a disability, the employee demonstrated a causal connection between her disability and the adverse employment action, because she was disciplined for taking the leave. And using the same rationale as for the FMLA claim, the court found that the denials of transfer were adverse employment actions and that the employee had demonstrated pretext for her ADA claim and her state law claim.

After-acquired evidence. The employer argued that any damages should be limited, because it had discovered that the employee worked for another employer while on FMLA leave, which violated the employer’s policy requirement for employees to obtain permission before taking on additional employment. But the court found that although the employer had shown it might have fired the employee for the violation, it had not shown that the wrongdoing was so severe that the employee would certainly have been fired.

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